Excerpt: - .....executed on the 25th august, whereas the partition deed appears to have included expressly all the joint family properties except the outstanding decrees and debts which were not mentioned and were considerable, the will bequeaths to the two wives not only the moveable and immoveable properties taken by the testator under the partition deed, ex. vi, but also 'all the moveable and immoveable properties, outstanding loans and properties belonging to me at present, but not included in this will and the moveable and immoveable properties, outstanding loans and properties which i may hereafter acquire.' this shows if proof were necessary that at the time of ex. vi all parties must have been perfectly well aware of the existence of other joint family properties which were not included in the.....

Judgment:

John Wallis, C.J.

1. The only question of any difficulty in this case is whether Ex. VI is to be construed as effecting a division in status as well as a division of the specific properties with which it deals expressly. This appears to me to be mainly a question of the construction of the document. In Vaidyanatha Iyer v. Aiyaswami Aiyar 19 M.L.J. 94, where a partial partition of property was held to raise a presumption of division in status, there was no deed of partition and I do not think that case is an authority for holding that wherever the co-parceners execute a document dividing a particular item of property that raises a presumption that they intended to become divided in status. If such a presumption is to be raised, there must in my opinion be something else in the document to raise it. This was a case of partition between the 1st defendant and his father, the 1st defendant being the son by the second of the father's three wives, and the partition was brought about by the father who was ill and anxious to make provisions for his first and third wives, as he did immediately afterwards in the will, Ex. VII, which he executed on 3rd September, the partition-deed, Ex. VI, having been executed on the 25th August, Whereas the partition deed appears to have included expressly all the joint family properties except the outstanding decrees and debts which were not mentioned and were considerable, the will bequeaths to the two wives not only the moveable and immoveable properties taken by the testator under the partition deed, Ex. VI, but also 'all the moveable and immoveable properties, outstanding loans and properties belonging to me at present, but not included in this will and the moveable and immoveable properties, outstanding loans and properties which I may hereafter acquire.' This shows if proof were necessary that at the time of Ex. VI all parties must have been perfectly well aware of the existence of other joint family properties which were not included in the partition-deed and the question, in my opinion, is whether from the terms of the deed we can gather that it was the intention of the parties to remain joint or become separate as to these items also. I do not think any strong presumption arises from the situation of the parties who were father and son. If the father was anxious to partition all the joint family properties with a view to leaving his share to his two wives, it, is strange he did not do so expressly and it has been argued that such was not his intention and that he probably thought that the Rs. 20,000 he took under the deed would be sufficient for these wives, and was willing that his son should take the rest by survivorship. As against this, there is the recital in the deed that there had been differences between the 1st defendant and his father as well as between the women of the family. On the whole I do not think it is safe to draw any inference as to the motives actuating the parties. The partition deed, however, after providing for the division of the scheduled properties, goes on : 'As we have effected partition in this manner ' and provides that the 1st defendant's mother who had been living in his family should be maintained by him and not by her husband. I have come to the conclusion, though not without hesitation, that these provisions are sufficient to enable us to raise a presumption that the parties intended to become divided in interest and that the decrees and outstanding debts were not divided then simply because they had not been collected and it was not possible to make a satisfactory division then as it could not be foretold what they would realize. The appeal will be dismissed with costs.

A.S.No.243 of 1914.

2. This case follows my decision in Appeal No. 47 of 1913, and I dismiss the appeal with costs.

A.S.No.47 of 1913.

Seshagiri Aiyar, J.

3. I agree. Mr. Rangachariar frankly conceded that in the face of the overwhelming evidence there is regarding the consent of his client to the division, he is not prepared to argue that the partition was brought about by undue influence.

4. The only question remaining for consideration is whether the father and son were divided in status with reference to the out-standings not specifically mentioned in the deed of partition. In my opinion the language of the document shows that the parties to it were no longer to remain joint. It says (a) we have lived hitherto as members of a joint family; (b) that owing to differences among females, it has become necessary to effect a partition; (c) we shall effect a partition in respect of the under mentioned properties. The list of outstandings is not among the properties mentioned in the schedule. It has also to be mentioned as pointed by Mr. Rangachariar that the usual clause ' that from this day forward there shall not be property relationship but only blood relationship ' is not to be found in this document Nonetheless I am of opinion that the intention of the parties was to get separated from each other; the reason for the necessity is given in the document. The 1st defendant is the son by one of the wives who was not living with her husband, and the pleadings and the evidence in this case show that the father effected the partition with a view to devise his share of the properties to his other two wives. I am unable to see that the father had any object in allowing particular portions of the property to continue as joint property. The explanation suggested by Mr. Srinivasa Aiyangar for their omission from the schedule is the most natural one. There were debts and decrees. It was apparently thought that the moneys should be apportioned as they were recovered. Some may have been or prove to be bad debts and it was not thought expedient to divide the debts at that time.

5. On principle, I am clear that the father and son became divided in status. It is pointed out by Mr. Ghose in his Hindu Law that there is nothing in the Smrithis to encourage a partial partition. The practice has grown up in recent years. Mr. Mitra in his Tagore lectures dealing with this special question quotes from the Smrithis and commentaries to show that partial partition was unknown to Hindu Law. I do not think it necessary to quote excerpts from the texts to substantiate this position (see Mitra on the ' Law of Partition,' pp. 330 and 381)

6. As regards the decided cases Sir Richard Garth in Radha Churn Dass v. Kripa Sindhu Dass I.L.R. (1879) Cal. 474 says, ' It seems indeed very doubtful whether by the Hindu Law any partial partition of the family property can take place except by arrangement.' The decisions in Satya Kumar v. Satya Kripa (1909) 3 I.C. 247, Bhowani Proshad v. Juggernath Shahu 13 C.W.N. 309 and Ajodhya Pershad v. Mahadeo Pershad 14 C.W.N. 221 prove that with the consent of the co-parceners a partial partition is possible. The decisions in Thimmi Reddy v. Achamma (1865) 2 M.H.C.R. 325, Kandaswami v. Doraswami Iyer I.L.R. (1880) M. 317only say that there can be a partial partition. On the other hand in Vaidyanatha Iyer v. Myasami Iyer I.L.R. (1908) M.191, it was clearly laid down that when once a partition was made, the presumption is that it effected a complete severance of interests. This was followed in Sundaramma v. Kamakotiah 24 M.L.J. 345. In Anandibai v. Hari Snba Pal I.L.R. (1911) B. 293 Chandavarkar, J. says : 'If it is proved that there had been a breach in the state of union, the law presumes that there has been a complete partition both as to parties and property. The presumption in question continues until it is rebutted by proof of an agreement, which means proof of intention on the part of some to remain united as before and to confine the partition to the rest or, if the partition was intended to extend to the interest of all individually, there must be proof that some of them re-united' I entirely agree. The recent decision of the Judicial Committee in Suraj Narain v. Iqhal Narain I.L.R. (1912) A. 80, indicates that when one member intimates his willingness to get separate from the others that would effect a division in status. In the present case there-was an agreement to become divided in consequence of misunderstandings among the female members of the family. I am unable to hold that the status of co-parcenery was intended to be continued with regard to the properties not specifically dealt with in the partition deed. It is conceded that apart from the language of the document there is no evidence to prove that the parties intended to remain joint with reference to the properties not specifically mentioned, I would dismiss the appeal with costs.